https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/449

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATES COURT CIVIL** **MCELRC CAUSE NO. E002 OF 2024** **SAMORA MACHEL...……….….……...………………………………………..CLAIMANT** **VERSUS** **LAKE GAS LIMITED…………………….…………………………………….RESPONDENT** **RULING** **Introduction** 1. Before the Court is the Notice of Motion dated 22nd April 2026 brought under Order 8 Rule 3 of the Civil Procedure Rules and all other enabling provisions of the law. The Applicant seeks the following orders: 2. That the Amended Memorandum of Claim dated 14th April 2026 be deemed as properly filed and on record. 3. That the Claimant be granted leave to file further supporting documents. 4. The Application is supported by the affidavit of Samora Machel sworn on 22nd April 2026. It is opposed through the Replying Affidavit sworn by Gurram Venkata Rama, a director of the Respondent, together with the parties' respective written submissions. **Applicant's Case** 1. The Applicant states that upon considering the Respondent's Amended Response and Counterclaim dated 23rd February 2026, he realized that he had inadvertently omitted claims for house allowance and unpaid overtime for the entire period of employment. He contends that these claims arise from the same employment relationship and do not alter the cause of action. According to the Applicant, the proposed amendments are intended to enable the Court determine all issues arising from the dispute. 2. The Applicant further submits that on 15th April 2026, he informed the Court of his intention to seek leave to regularize the Amended Memorandum of Claim and that the delay in filing the application resulted from technical challenges affecting the Judiciary CTS platform. He also argues that the Respondent has not demonstrated any prejudice that cannot be compensated by costs. Reliance is placed on Mwangi v Garissa & another [2025] KEELRC 103 (KLR) for the proposition that amendments should generally be allowed where they facilitate determination of the real issues in controversy without occasioning prejudice. **Respondent's Case** 1. The Respondent opposes the Application on the ground that the Applicant had already been granted leave on 27th November 2025 to amend pleadings within prescribed timelines but failed to comply. It argues that instead of seeking extension of time, the Applicant proceeded to file an Amended Memorandum of Claim without leave and only sought the Court's validation after the Respondent indicated that it intended to challenge the pleading. 2. The Respondent contends that the amendment was introduced on the eve of the hearing, after inordinate delay, and introduces substantial claims for house allowance and overtime which prejudice the Respondent. It further argues that the application amounts to an abuse of the Court process and should be dismissed with costs. Reliance is placed on Central Kenya Ltd v Trust Bank Ltd & 5 Others [2000] eKLR and Institute for Social Accountability & Another v Parliament of Kenya & 3 Others [2014] eKLR. **Issue for Determination** 1. The sole issue for determination is whether the Applicant has established sufficient grounds to warrant leave for the Amended Memorandum of Claim dated 14th April 2026 to be deemed properly filed and for leave to file further supporting documents. **Analysis** 1. The law relating to amendment of pleadings is well settled. Order 8 Rule 3 of the Civil Procedure Rules grants the Court discretion to permit amendments at any stage of the proceedings. The discretion, however, must be exercised judicially and with due regard to whether the amendment is necessary for determining the real questions in controversy and whether the opposite party will suffer prejudice incapable of being compensated by costs. 2. The Court of Appeal in Central Kenya Ltd v Trust Bank Ltd & 5 Others [2000] eKLR, relied upon by the Respondent, reaffirmed the long-standing principle that amendments should generally be freely allowed provided there is no undue prejudice, no injustice to the opposite party and no introduction of a wholly inconsistent cause of action. The same decision also emphasized that mere delay is not, by itself, a sufficient ground for refusing leave where prejudice can adequately be remedied through an award of costs. 3. Similarly, the High Court in Institute for Social Accountability & Another v Parliament of Kenya & 3 Others [2014] eKLR observed that amendments should ordinarily be permitted where they facilitate complete adjudication of the issues in dispute and avoid multiplicity of proceedings, provided that no irremediable prejudice is occasioned to the opposing party. 4. Applying those principles to the present case, the Court notes that the proposed amendments seek to introduce claims for unpaid house allowance and overtime allegedly arising from the same employment relationship which forms the basis of the existing suit. The amendment therefore does not introduce a fresh or inconsistent cause of action but merely expands the remedies sought under the existing employment dispute. 5. The Court equally appreciates the Respondent's complaint that the Applicant had earlier been granted leave to amend pleadings and failed to act within the stipulated timelines. That conduct cannot be lightly overlooked. Parties are expected to comply with court directions, and failure to do so ought to be explained satisfactorily. 6. Nevertheless, the Court must balance procedural compliance against the overriding objective of determining disputes on their substantive merits. The explanation offered by the Applicant regarding the CTS challenges may not fully justify the delay. However, it is noteworthy that the Respondent had already amended its own pleadings by filing an Amended Response and Counterclaim dated 23rd February 2026, and the Applicant thereafter filed a Reply to that amended pleading. The litigation therefore remains at a stage where the Respondent will have adequate opportunity to respond to the amended claim if leave is granted. 7. The Respondent has generally alleged prejudice but has not demonstrated any prejudice that cannot be adequately remedied through an award of costs and corresponding leave to amend its defence should that become necessary. 8. The Court is persuaded that refusing leave would potentially lock out claims arising from the same employment relationship and may necessitate separate proceedings, contrary to the principle that disputes should, where possible, be determined comprehensively in a single suit. 9. The Applicant's failure to obtain leave before filing the amended pleading was undoubtedly irregular. However, that irregularity is capable of being regularized through the Court's discretionary powers, particularly where no injustice incapable of compensation has been demonstrated. **Disposition** 1. Accordingly, the Notice of Motion dated 22nd April 2026 is allowed on the following terms: 2. The Amended Memorandum of Claim dated 14th April 2026 is hereby deemed as properly filed and duly on record. 3. The Applicant is granted leave to file and serve any further supporting documents within seven (7) days from the date hereof. 4. The Respondent shall have corresponding leave to file and serve any consequential amended response, supplementary documents and witness statements, if necessary, within fourteen (14) days of service. 5. Thereafter, the matter shall be mentioned for confirmation of compliance and for allocation of a hearing date. 6. Given that the delay giving rise to the present Application is attributable to the Applicant, the costs of the Application shall abide the outcome of the main suit. It is so ordered. **DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS AT MOMBASA THIS 30TH JULY 2026.** **……………………………………………….** **EMILY M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**